Poles apart (and some $400K poorer)

September 23rd 2014

The Federal Circuit Court of Australia has handed down its decision in a case revolving around pole dancing equipment and accessories.

X-Poles was concerned that “Skyrunner” was selling inferior quality poles for such dances – poles that not only bore copies of X-Pole’s trade marks, but that were potentially dangerous to the pole-dancing public and (presumably) their audiences.

X-Poles was also concerned that the poles sold by Skyrunner were accompanied by unauthorised copies of a range of X-Poles’ copyright material – not only its logo, but also the artwork in the manual that accompanied the pole, various photographs, an instructional video and a photograph of Ms Jamilla Deville. (Ms Deville – based in Sydney – is not only a Miss Pole Dance Australia, but has also twice-running been the IPDFA Instructor of the Year.)

The Court awarded X-Poles damages on the basis of:

lost profits on 160 poles sold by Skyrunner;

loss of X-Poles’ reputation at both retail and wholesale levels; and

Skyrunner’s flagrant disregard for X-Poles’ rights (Skyrunner’s behaviour displayed a “deliberate, deceitful and calculated disregard” of those rights, and continued even after it was given warnings).

All up, just under $95,000 was awarded for lost profits and reputation, with an additional $300,000 being awarded by way of “aggravated” damages. The case is therefore a good reminder of the general principal that there is no necessary correlation between compensatory damages and aggravated damages (for “flagrancy”). Rather, aggravated damages are available to mark a court’s “recognition of the opprobium attached to the defendant’s conduct“. Skyrunner was also ordered to pay X-Poles’ costs.